British judges have traditionally undervalued freedom of the press and of speech. That is why cases like Thalidomide (contempt of court), Spycatcher (breach of confidence), Harriet Harman (contempt of court), Tolstoy (libel damages), and Goodwin (journalist's refusal to disclose confidential source) were taken successfully to the European Court of Human Rights in Strasbourg. Until recently, only a tiny minority of British judges took free speech seriously. Today, the position is changing dramatically. Our courts, influenced by the European Court of Human Rights, are giving judgments based on a strong commitment to human rights.

Last week's landmark rulings in the Shipman and Shayler cases show how senior judges are protecting free speech more strongly on the eve of the coming into force of the Human Rights Act 1998 on 2 October. Their decisions mean that the Strasbourg Court will probably be less burdened with future British cases fettering freedom of information and public discussion.

In Shipman, the Divisional Court upheld a challenge by families of the victims, supported by the media, to the Secretary of State for Health's decision requiring an inquiry into the issues raised by Dr Harold Shipman's murder of 15 patients to be held in private. Lord Justice Kennedy found that the decision to sit in private was legally irrational and contravened the guarantee of free expression in Article 10 of the European Convention on Human Rights because it constituted unjustified government interference with the free communication of information. He quoted from the Strasbourg Court's classic statement of principle that freedom of expression protects information and ideas that 'offend, shock or disturb'; that the exceptions to free expression 'must be narrowly interpreted and the necessity for any restrictions must be convincingly established'; and that it is incumbent on the press, in its vital role as public watchdog, to impart information and ideas on matters of public interest.

The Court treated the right to free expression, anchored in the European Convention, as also being a fundamental principle of the English common law. It ruled that there is a presumption that a public inquiry will proceed in public 'unless there are persuasive reasons for taking some other course'. Because the Minister, Alan Milburn, had failed to give persuasive reasons for excluding the press and the public, he had exceeded his lawful powers.

Judicial recognition of a positive right to free expression rooted in the common law was first made by the Law Lords in 1993 in the Derbyshire libel case. They decided that a government body cannot invoke libel law to vindicate its so-called 'governing reputation'. To allow public authorities to take up the sword of libel law to protect themselves against public criticism would have a 'chilling effect' on free speech. They emphasised that 'it is of the highest public importance that a government body should be open to uninhibited public criticism'. Their decision wove the Convention right into the fabric of English law, and recognised the fundamental importance of a free press in a democratic society.

This major shift in British judicial attitudes was influenced by the European Court's findings that the Law Lords had unnecessarily interfered with free expression by giving excessive weight to other competing rights and interests. European human rights law has had a tonic effect in prompting our courts to discover hitherto hidden potential in the common law.

Last year, in Reynolds' case (an alleged libel on the political reputation of Ireland's former Taoiseach), the Law Lords extended the common law protection of qualified privilege to media reporting of matters of public interest. English libel law has notoriously draconian features reflecting its origins in the seventeenth-century Court of Star Chamber. It puts the burden on the publisher to prove the truth of his allegations. The state of mind and conduct of the publisher are irrelevant unless he is able to claim that the publication was made on an occasion of privilege. In Reynolds, the Law Lords looked at this harsh law in the context of a constitutional or common-law right to free expression. They recognised that the media should be entitled to publish inaccurate information on matters of public interest, provided that they act fairly and reasonably in accordance with proper professional standards. The reasoning in Reynolds has been developed further in a brilliant judgment of the Court of Appeal of New Zealand given last month in Lange.

Again last year, in Simms, the Law Lords ruled that a blanket ban by the Home Office on interviews of prisoners by journalists was unlawful because it deprived prisoners of their basic and fundamental right free expression to gain access to justice through press reporting. They refused to follow the restrictive rulings of the American Supreme Court, Lord Steyn observing that the Supreme Court's approach of 'judicial deference to the view of prison authorities... does not accord with the approach under English law. It is at variance with the principle that only a pressing social need can defeat freedom of expression'. That is a striking observation. A decade ago the American Supreme Court's decisions on the First Amendment's guarantee of free speech were treated as too liberal to influence our law; today, in the area of prisoners' rights American constitutional law is treated as being too restrictive to meet more liberal British legal standards.

Last Thursday's judgment of the Court of Appeal in Shayler is a further example of the enlightened approach that will surely inform our courts' use of the Human Rights Act to protect basic civil rights and freedoms. The Observer and the Guardian are right to claim the judgment as a famous victory. In particular, the leading judgment of Lord Justice Judge is charmingly English, purporting to find the principles of the European Convention 'bred in the bone of the common law', and a part of 'the folk understanding of the community as a whole'. References to Dicey, Voltaire and the great eighteenth-century case of Entick v Carrington are invoked by Lord Justice Judge to lament the pitiful condition of the French under the Bourbons for their inferior status, without benefit of the glorious English constitution in King George III's reign. Vive l'Angleterre!

It also contains some well-deserved shafts of irony at the expense the luckless detective sergeant who expressed the belief that there had been a breach of the Official Secrets Act while knowing virtually nothing about the case.

What is really important about the Shayler judgment is the effective protection it gives to 'fundamental principles' and its emphasis on the need for the judge to be alert to the need to safeguard basic human rights and freedoms against inordinate and excessive claims by the state and its agents. The judgment identifies the risks of self-incrimination and of stifling newspaper investigation of the Shayler story as out- weighing the competing benefit of disclosure to the security services. In Lord Justice Judge's magisterial language: 'Inconvenient or embarrassing revelations, whether for the security services, or for public authorities, should not be suppressed. Legal proceedings directed towards the seizure of the working papers of an individual journalist or the premises of the newspaper or television programme publishing his or her reports, or the threat of such proceedings, tends to inhibit discussion. When a genuine investigation into possible corrupt or reprehensible activities by a public authority is being investigated by the media, compelling evidence would normally be needed to demonstrate that the public interest would be served by such proceedings. Otherwise, to the public disadvantage, legitimate enquiry and discussion and the safety valve of investigative journalism... would be discouraged perhaps stifled.'

British senior judges really are, in Jack Straw's phrase, 'Bringing Rights Home'. What a pity that the Home Secretary does not share their democratic values. His flawed measures, unnecessarily restricting public access to official information, and authorising the interception, surveillance and disclosure of journalistic material without a judicial warrant, will make it necessary for the judges to come to the rescue of British rights and freedoms.

 Lord Lester of Herne Hill QC is a human rights lawyer at Blackstone Chambers who has argued several of the free speech cases to which he refers in English courts and the European Court of Human Rights.